Donegan v. United States

• Decision Date: 11 December 1922
• Docket Number: 93.
• Citation: 287 F. 641
• Parties: DONEGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

287 F. 641

DONEGAN v. UNITED STATES.

No. 93.

United States Court of Appeals, Second Circuit.

December 11, 1922

Elijah N. Zoline, of New York City (John W. Davis, of New York City of counsel), for plaintiff in error.

William Hayward, U.S. Atty., of New York City (David V. Cahill, Sp Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

Plaintiff in error, with one Regina Sassone, was indicted on twelve counts for unlawfully and willfully taking and carrying away from the office of the federal prohibition director of New York City, with intent to convert to his own use, certain personal property, in violation of section 46 of the United States Criminal Code. This section reads that, whoever shall rob another of any kind or description of personal property of the United States, or shall feloniously take and carry away the same, shall be guilty of crime.

The first count charges the taking and carrying away on December 29, 1920, with intent to convert to their own use, a telegram dated December 29, 1920, addressed to Charles R O'Connor, prohibition director, and sent by Gwynnbrook Distilling Company. The second count is for the taking on December 29, 1920, of a telegram dated December 29, 1920 sent by the Stewart Distilling Company. The third count is for the taking on December 29, 1920, of a telegram dated December 29, 1920, sent by the Industrial Grain Products Corporation. The fourth count is for the taking on December 27, 1920, of a telegram dated December 27, 1920, sent by R. L. Buse Company. The fifth count is for the taking on December 29, 1920, of a telegram dated December 29, 1920, sent by R. L. Buse Company. The sixth count is for the taking on December 24, 1920, of a telegram dated December 24, 1920, sent by the New York & Kentucky Company. The seventh count is for the taking on December 23, 1920, of a telegram dated December 23, 1920, sent by the Jas Clear Distilling Company. The eighth count is for the taking on December 23, 1920, of a telegram dated December 23, 1920, sent by the Freiberg & Workum Company. The ninth count is for the taking on December 24, 1920, of a letter dated December 24, 1920, sent by the Hamburger Distillery. The tenth count is for the taking on December 24, 1920, of a letter dated December 24, 1920, sent by the Economy Distilling Company. The eleventh count is for the taking on October 28, 1920, of a letter dated October 28, 1920, sent by the Quincy Market Cold Storage & Warehouse Company. The twelfth count is for the taking on December 24, 1920, of a letter dated December 24, 1920, sent by the Freiberg & Workum Company.

In a thirteenth count they are charged with having unlawfully combined, federated, and agreed together, and with divers other persons whose names are to the grand jurors unknown, to violate the National Prohibition Act (41 Stat. 305). This count alleges that it was part of the conspiracy that the defendants procure the issuance to the persons with whom they had conspired of basic permits to deal as wholesale dealers in intoxicating liquors, and should procure the making and issuance, in the name of the federal prohibition director for the state of New York, of permits for the withdrawal and sale of intoxicating liquors without authorization from or consent of the federal prohibition director or any person or official authorized and empowered to give such authorization or consent; and as a further part of such conspiracy it is alleged that such persons should procure and cause the name of Charles R. O'Connor, who was the federal prohibition director of the state of New York, and that of John Connor, who was an assistant, and authorized and empowered in proper cases to sign and issue permits for the sale of intoxicating liquors, to be forged upon papers purporting to be such permits; further, that the defendants should cause the permits, with the names forged thereon, to be presented to distilleries and wholesale dealers in intoxicating liquors, and should procure by means of such papers the delivery to themselves and to the said other persons of large quantities of intoxicating liquors without the permits prescribed by law; and, further, that the defendants should procure the issuance of such papers purporting to be permits in the names of various persons who held permits to deal in intoxicating liquors without the knowledge or consent of such persons; and, further, that the defendants should obtain telegrams from various distilleries and wholesale liquor dealers inquiring about the genuineness of permits for the withdrawal of intoxicating liquors which would be presented to such distilleries and wholesale liquor dealers, and should deliver the same to the defendant Donegan and to said other persons, and that the defendant should reply to such telegrams in the names of the federal prohibition directors to whom such telegrams should be addressed, and should assure the distilleries and wholesale liquor dealers that such permits were genuine and lawfully issued, whereas, in fact, they would be false, forged and fraudulently issued; and, further, that the telegrams should be taken and carried away by the defendants after they had been received at the office of the federal prohibition director for the state of New York, and should be retained and kept by the defendants, and that as part of such conspiracy that by means of such false, fraudulent, and forged permits, and the possession of such telegrams, and the sending of the aforesaid replies thereto the defendants should procure the delivery to themselves, and to the said various other persons of large quantities of intoxicating liquors without the permits prescribed by law, and should sell and deal in intoxicating liquors without obtaining lawful permits so to do-- all of which, it is alleged, was a violation of section 37 of the United States Criminal Code.

After a trial, Sassone was acquitted and the plaintiff in error was convicted.

In support of these charges, the government proved that the plaintiff in error and Mary Parkins were arrested in the latter's room at the Hotel McAlpin on December 29, 1920. Mrs. Parkins was an employee of the government in the office of the federal prohibition director in New York City. The codefendant, Sassone, was also an employee of the government in that office. They both lived at the Hotel McAlpin at the time, occuping adjoining and connecting rooms. The codefendant was registered as Mrs. Lynch, and the plaintiff in error as Mr. Lynch. He was also known as Joyce, and his codefendant was known as Mrs. Joyce. The plaintiff in error never had a permit to deal in liquor. A federal prohibition agent, engaged in the work of detection of this crime during December, 1920, met Mrs. Parkins and later the plaintiff in error. He discussed various liquor transactions with them and the plaintiff in error stated that he would furnish withdrawal papers to the agent for 125 barrels of liquor; that the papers wouldn't be genuine, but that they would get through. He would charge $100 per barrel, and would guarantee the liquor out of the distillery, but not to destination. He showed the agent some papers that were in the form of withdrawal permits and with the name of the federal prohibition director, Charles R. O'Connor, stamped thereon, and the name of the director's assistant, John Connor, in handwriting. He took these papers from his pocket and remarked:

'We fix them up so that they look genuine and will go through all right.'

He told the agent that he had men at various distilleries throughout the country looking after his interests and that there was considerable money in this business, and that on that day he had left home with $20 and that he then had $30,000, and he showed the agent a big roll of money. The codefendant, Sassone, took no part in this conversation. The agent reported these facts to his superiors before the arrest. Mrs. Parkins testified for the government that the plaintiff in error paid her for introductions to people for whom he was able to get liquor, and that she introduced him to one Gorman, for whom he was to get 50 barrels. For this introduction, Mrs. Parkins was paid $1,000 by the plaintiff in error. When the defendants were arrested, they were together in Mrs. Parkins' room. Plaintiff in error was searched, and a number of telegrams and letters from various distilleries addressed to the federal prohibition director, inquiring about the genuineness of permits for the sale of liquors which the distilleries had received, as well as copies of what purported to be answers in the name of the director to such inquiries, were found in his clothing. Among the letters and telegrams were the 12 which are the subject-matter of the counts of the indictment. Some letters and telegrams purporting to be signed by O'Connor proved to be forgeries.

The distillers testified, except the one referred to in the third count, stating that the telegrams and letters were sent by them in the ordinary course. Papers were found upon the bed in Mrs. Parkins' room, but these were not made the subject of the counts in the indictment. The plaintiff in error at the time of his arrest attempted to bribe the government officers, offering various sums in cash for his release and 'for fixing the matter up.' His codefendant, Sassone, made a written statement to the government agents who arrested her, in which she stated that the plaintiff in error paid her to steal the telegrams and letters from the director's office and give them to him. She explained that, when a telegram came to her as file clerk in the director's office, inquiring as to the genuineness of a permit, if there was no record of such a permit...